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Exhibit 4
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of November 29, 1995, by and among Rite Aid Corporation,
a Delaware corporation ("Parent"), Ocean Acquisition Corporation, a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), and ▇▇▇▇/Chilmark
Fund, L.P., a Delaware limited partnership (referred to herein as the
"Stockholder").
W I T N E S S E T H:
WHEREAS, immediately prior to the execution of this Agreement, Parent, Sub
and Revco D.S., Inc., a Delaware corporation (the "Company"), have entered into
an Agreement and Plan of Merger (as such agreement may hereafter be amended
from time to time, the "Merger Agreement"), pursuant to which Sub will be
merged with and into the Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company desire that as
soon as practicable but in no event later than five business days) after the
execution of the Merger Agreement, Sub shall commence an offer (the "Offer") to
purchase for cash not less than 35,144,833 shares and up to all of the issued
and outstanding Company Common Stock (as defined in Section 1 hereof) at a
price of $27.50 per share of Company Common Stock; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
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1. CERTAIN DEFINITIONS. Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger Agreement. For purposes
of this Agreement:
(a) "BENEFICIALLY OWN" OR "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person shall include securities Beneficially Owned by all other Persons with
whom such Person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act.
(b) "COMPANY COMMON STOCK" shall mean at any time the common stock, $.01
par value, of the Company.
(c) "PERSON" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
2. TENDER OF SHARES.
(a) The Stockholder hereby agrees to validly tender (or cause the record
owner of such shares to tender), and not to withdraw, pursuant to and in
accordance with the terms of the Offer, not later than prior to the expiration
of the Offer pursuant to Section 1.1 of the Merger Agreement and Rule 14d-2
under the Exchange Act, 13,102,288 shares of Company Common Stock (the
"Existing Shares" and together with any shares of Company Common Stock acquired
by the Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities,
or by means of purchase, dividend, distribution, gift, bequest, inheritance or
as a successor in interest in any capacity or otherwise, the "Shares")
Beneficially Owned by the Stockholder. The Stockholder hereby acknowledges and
agrees that Parent's and Sub's obligation to accept for payment and pay for the
Shares in the Offer, is subject to the
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terms and conditions of the Offer. The parties agree that the Stockholder
will, for all Shares tendered by the Stockholder in the Offer and accepted for
payment and paid for by Sub, receive the same per share consideration paid to
other shareholders who have tendered into the Offer.
(b) The transfer by the Stockholder of the Shares to Sub in the Offer shall
pass to and unconditionally vest in Sub good and valid title to the Shares,
free and clear of all claims, liens, restrictions, security interests, pledges,
limitations and encumbrances whatsoever.
(c) The Stockholder hereby agrees to permit Parent and Sub to publish and
disclose in the Offer Documents and, if approval of the Company's shareholders
is required under applicable law, the Registration Statement and the Proxy
Statement/Prospectus (including all documents and schedules filed with the SEC)
its identity and ownership of Company Common Stock and the nature of its
commitments, arrangements and understandings under this Agreement.
3. VOTING OF COMPANY COMMON STOCK. The Stockholder hereby agrees that
during the period commencing on the date hereof and continuing until the first
to occur of (i) the Effective Time or (ii) termination of this Agreement in
accordance with its terms, at any meeting (whether annual or special and
whether or not an adjourned or postponed meeting) of the holders of Company
Common Stock, however called, or in connection with any written consent of the
holders of Company Common Stock, the Stockholder shall vote (or cause to be
voted) the Shares held of record or Beneficially Owned by the Stockholder (i)
in favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval and adoption of the terms thereof and each of the
other actions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof; (ii) against any action or
agreement that would result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or this Agreement; and (iii) except as otherwise
agreed to in writing in advance by Parent, against the following actions (other
than the Merger and the
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transactions contemplated by this Agreement and the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its Subsidiaries; (B) any sale,
lease or transfer of a material amount of assets of the Company or its
Subsidiaries, or a reorganization, restructuring, recapitalization, special
dividend, dissolution or liquidation of the Company or its Subsidiaries; or
(C)(1) any change in a majority of the persons who constitute the board of
directors of the Company; (2) any change in the present capitalization of the
Company including any proposal to sell a substantial equity interest in the
Company and its Subsidiaries; (3) any amendment of the Company's Certificate of
Incorporation or By-laws; (4) any other change in the Company's corporate
structure or business; or (5) any other action which, in the case of each of
the matters referred to in clauses (C)(1), (2), (3) or (4), is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Offer, the Merger and the transactions
contemplated by this Agreement and the Merger Agreement. The Stockholder shall
not enter into any agreement or understanding with any person or entity the
effect of which would be inconsistent or violative of the provisions and
agreements contained in this Section 3.
4. STOCKHOLDER COVENANT. Except as contemplated by this Agreement, the
Stockholder shall not for a period of six months following the termination of
this Agreement (other than as a result of a breach by Parent or Sub) enter
into, execute, or be a party to any agreement or understanding, written or
otherwise, with any Person whereby the Stockholder (i) grants or otherwise
gives to such Person an option or right to purchase or acquire any or all of
the Shares other than sales made in open market transactions; (ii) agrees or
covenants to vote or to grant a proxy to vote any or all of the Shares held of
record or Beneficially Owned by the Stockholder, at any meeting (whether annual
or special and whether or not an adjourned or postponed meeting) of the holders
of Company Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock; or (iii) agrees or covenants to
tender any or all of the Shares held of record or Beneficially Owned by the
Stockholder into any tender offer or exchange offer relating to the Company
Common Stock.
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5. COVENANTS, REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. The
Stockholder hereby represents and warrants to, and agrees with, Parent and Sub
as follows:
(a) OWNERSHIP OF SHARES. The Stockholder is the record and Beneficial
Owner of the Existing Shares. On the date hereof, the Existing Shares
constitute all of the Shares owned of record or Beneficially Owned by the
Stockholder. The Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 2 and 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in
this Agreement, in each case with respect to all of the Existing Shares with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) CORPORATE AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement enforceable against the Stockholder in accordance with its terms
except to the extent (i) such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by the Stockholder, the consummation
by the Stockholder of the transactions contemplated hereby or compliance by
the Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of the Stockholder, (B)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise
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to any third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
loan agreement, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which Stockholder is a party or by which the Stockholder or any of its
properties or assets may be bound, or (C) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to the Stockholder or
any of its properties or assets.
(d) NO ENCUMBRANCES. Except as applicable in connection with the
transactions contemplated by Sections 2, 3 and 4 hereof, the Shares and the
certificates representing such Shares are now, and at all times during the term
hereof, will be, held by the Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder.
(f) NO SOLICITATION. Stockholder shall not, and shall cause its affiliates
and officers, directors, employees, partners, investment bankers, attorneys,
accountants and other agents and representatives of Stockholder and such
affiliates (such affiliates, officers, directors, employees, partners
investment bankers, attorneys, accountants, agents and representatives of any
Person are hereinafter collectively referred to as the "Representatives" of
such Person) not to, directly or indirectly (i) initiate, solicit or encourage,
or take any action to facilitate the making of, any offer or proposal which
constitutes or is reasonably likely to lead to any Takeover Proposal (as
defined in the Merger Agreement) of the Company or any affiliate or any inquiry
with respect thereto, or (ii) in the event of an unsolicited Takeover Proposal
for the Company or any affiliate of the Company, engage in negotiations or
discussions
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with, or provide any information or data to, any Person (other than Parent, any
of its affiliates or representatives) relating to any Takeover Proposal.
Stockholder shall notify Parent and Sub orally and in writing of any such
offers, proposals, or inquiries relating to the purchase or acquisition by any
Person of the Shares (including, without limitation, the terms and conditions
thereof and the identity of the Person making it), within 24 hours of the
receipt thereof. Stockholder shall, and shall cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any parties conducted heretofore with
respect to any Takeover Proposal relating to the Company, other than
discussions or negotiations with Parent and its affiliates. Notwithstanding
the restrictions set forth in this Section 5(f), any Person who is an officer
or director of the Company may exercise his fiduciary duties in his capacity as
a director or officer of the Company consistent with the terms of the Merger
Agreement.
(g) RESTRICTION ON TRANSFER, PROXIES AND NON-INTERFERENCE. Except as
applicable in connection with the transactions contemplated by Sections 2 and 3
hereof, the Stockholder shall not, directly or indirectly: (i) offer for sale,
sell, transfer, tender, pledge, encumber, assign or otherwise dispose of, or
enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Shares or
any interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit the Shares into a voting trust or enter
into a voting agreement with respect to the Shares; or (iii) take any action
that would make any representation or warranty of the Stockholder contained
herein untrue or incorrect or would result in a breach by the Stockholder of
their obligations under this Agreement or a breach by the Company of its
obligations under the Merger Agreement.
(h) RELIANCE BY PARENT. The Stockholder understands and acknowledges that
Parent is entering into, and causing Sub to enter into, the Merger Agreement in
reliance upon the Stockholder's execution and delivery of this Agreement.
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(i) FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
(j) DISTRIBUTION OF SHARES OF PARENT COMMON STOCK. Upon the consummation
of the Merger, the Stockholder shall within 90 days thereafter either
distribute the shares of Parent Common Stock (as defined in the Merger
Agreement) to each of the limited partners of ▇▇▇▇/Chilmark Fund, L.P. or sell
or otherwise dispose of such shares of Parent Common Stock, in each case in
accordance with the governing documents thereto and applicable law; provided
that no such sale or other disposition shall be made if immediately following
such sale or other disposition the acquiror of such Parent Common Stock,
together with the acquiror's affiliates and any members of a group of which the
acquiror is a party, would Beneficially Own in the aggregate 4.9% or more of
the Parent Common Stock then outstanding.
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB. Parent and Sub hereby
represent and warrant to Stockholder as follows:
(a) ORGANIZATION. Each of Parent and Sub is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
has all requisite corporate power or other power and authority to execute and
deliver this Agreement and perform their respective obligations hereunder. The
execution and delivery by Parent and Sub of this Agreement and the performance
by Parent and Sub of their respective obligations hereunder have been duly and
validly authorized by the Board of Directors of each of Parent and Sub and no
other corporate proceedings on the part of Parent or Sub are necessary to
authorize the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby.
(b) CORPORATE AUTHORIZATION. This Agreement has been duly and validly
executed and delivered by Parent and Sub and constitutes a valid and binding
agreement of each of Parent and Sub enforceable against each
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of Parent and Sub in accordance with its terms except to the extent (i) such
enforcement may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors rights and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(c) NO CONFLICTS. Except for filings, authorizations, consents and
approvals as may be required under the HSR Act, the Exchange Act and the
Securities Act (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by Parent or Sub and the consummation by Parent or
Sub of the transactions contemplated hereby and (ii) none of the execution and
delivery of this Agreement by Parent of Sub, the consummation by Parent or Sub
of the transactions contemplated hereby or compliance by Parent or Sub with any
of the provisions hereof shall (A) conflict with or result in any breach of the
certificate of incorporation or by-laws of Parent or Sub, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, loan agreement, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which Parent or Sub is a party
or by which Parent or Sub or any of their respective properties or assets may
be bound, or (C) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to Parent or Sub or any of their
respective properties or assets.
(d) NO FINDER'S FEE. Except for ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities
Corporation, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of Parent or Sub.
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7. STOP TRANSFER; LEGEND.
(a) The Stockholder agrees with, and covenants to, Parent that the
Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Shares, unless such transfer is made in compliance with
this Agreement (including the provisions of Section 2 hereof). In the event of
a stock dividend or distribution, or any change in the Company Common Stock by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer to and
include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged and appropriate adjustments shall be made to the terms and provisions
of this Agreement.
(b) The Stockholder shall promptly after the date hereof surrender to the
Company all certificates representing the Shares, and the Company shall place
the following legend on such certificates:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDER
AGREEMENT, DATED AS OF NOVEMBER 29, 1995 BY AND AMONG RITE AID CORPORATION,
OCEAN ACQUISITION CORPORATION AND ▇▇▇▇/CHILMARK FUND, L.P. WHICH AMONG OTHER
THINGS RESTRICTS THE TRANSFER AND VOTING THEREOF."
8. TERMINATION. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
earlier of (i) the consummation of the Merger and (ii) the termination of the
Merger Agreement in accordance with its terms except, that the covenant and
agreement set forth in Section 4 hereof shall survive for six months after such
termination (other than a termination as a result of a breach by Parent or
Sub).
9. CONFIDENTIALITY. The Stockholder recognizes that successful
consummation of the transactions contemplated by this Agreement may be
dependent upon confidentiality with respect to the matters referred to herein.
In this connection, pending public disclosure thereof, the Stockholder hereby
agrees not to disclose or
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discuss such matters with anyone not a party to this Agreement (other than its
counsel and advisors, if any) without the prior written consent of Parent,
except for filings required pursuant to the Exchange Act and the rules and
regulations thereunder or disclosures its counsel advises are necessary in
order to fulfill its obligations imposed by law, in which event such
Stockholder shall give notice of such disclosure to Parent as promptly as
practicable so as to enable Parent to seek a protective order from a court of
competent jurisdiction with respect thereto.
10. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the Merger Agreement constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof.
(b) BINDING AGREEMENT. The Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
person or entity to which legal or Beneficial Ownership of such Shares shall
pass, whether by operation of law or otherwise, including, without limitation,
the Stockholder's heirs, distributees, guardians, administrators, executors,
legal representatives, or successors or other transferees (for value or
otherwise) and any other successors in interest. Notwithstanding any transfer
of Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) ASSIGNMENT. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other party, provided
that Parent may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Parent, but no
such assignment shall relieve Parent of its obligations hereunder if such
assignee does not perform such obligations.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
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execution and delivery of a written agreement executed by the parties hereto.
(e) NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if given) by hand delivery or telecopy (with
a confirmation copy sent for next day delivery via courier service, such as
Federal Express), or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Stockholder: ▇▇▇▇/Chilmark Fund, L.P.
Two ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
copy to: ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, Esq.
Benesch, Friedlander,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Parent Rite Aid Corporation
or Sub: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention.: Chief Executive Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) SEVERABILITY. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid under applicable law but if any provision or
portion of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.
(g) SPECIFIC PERFORMANCE. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or
in equity.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) NO WAIVER. The failure of any party hereto to exercise
any right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a waiver
by such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
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(j) NO THIRD PARTY BENEFICIARIES. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(l) JURISDICTION. Each party hereby irrevocably submits to
the exclusive jurisdiction of the Court of Chancery in the State of Delaware in
any action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding shall be brought only in such
court (and waives any objection based on forum non conveniens or any other
objection to venue therein); provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this paragraph (l) and
shall not be deemed to be a general submission to the jurisdiction of said
Court or in the State of Delaware other than for such purposes. Each party
hereto hereby waives any right to a trial by jury in connection with any such
action, suit or proceeding.
(m) DESCRIPTIVE HEADINGS. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(n) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of
which, taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Parent, Sub and the Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
RITE AID CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Grass
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Name: ▇▇▇▇▇▇ ▇. Grass
Title: Chairman of the Board
and Chief Executive
Officer
OCEAN ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Grass
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Name: ▇▇▇▇▇▇ ▇. Grass
Title: President
▇▇▇▇/CHILMARK FUND, L.P.
By: ZC Limited Partnership,
general partner
By: ZC Partnership,
general partner
By: CZ Inc., a partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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